1. Rules for reviewing a claim of ineffective assistance of counsel are stated and applied.

2. Under the facts of this case, it is held that defendant's trial counsel was not ineffective
in (1) failing to preserve one, but not all, issues for direct appeal; (2) failing to call
certain witnesses at the hearing on the motion to suppress or at trial; (3) failing to
pursue a diminished mental capacity defense; and (4) failing to pursue a motion to
recuse the trial judge.

ELLIOTT, J.: Following the affirmance by the Kansas Supreme Court of his
convictions of first-degree premeditated murder and aggravated kidnapping, see State v.
Cellier, 263 Kan. 54, 948 P.2d 616 (1997), Lance C. Cellier filed a K.S.A. 60-1507 petition
based on five allegations of ineffective assistance of counsel. He appeals the denial of his
petition. We affirm.

A thorough understanding of the factual and procedural background of the criminal
trial underlying this 60-1507 action as documented in the Supreme Court's opinion is
important in understanding the arguments Cellier now advances. Throughout this opinion,
the "1507 court" refers to the district court which heard the 1507 motion and the "trial court"
refers to the court which heard the underlying criminal trial.

For present purposes, the two landmark cases on the issue of ineffective assistance of
counsel are Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.
2052, reh.
denied 467 U.S. 1267 (1984), and Chamberlain v. State, 236 Kan. 650, 694
P.2d 468 (1985).
Strickland announced the now familiar test of evaluating a claim of ineffective
assistance of
counsel. A defendant must show: (1) counsel's performance "fell below an objective standard
of reasonableness," 466 U.S. at 688, and (2) the deficient performance prejudiced the
defendant, 466 U.S. at 694.

Regarding the "performance prong," our Supreme Court wrote in
Chamberlain:

"The proper standard for judging attorney performance is that of
reasonably effective assistance, considering all the circumstances. When a
convicted defendant complains of the ineffectiveness of counsel's assistance,
the defendant must show that counsel's representation fell below an objective
standard of reasonableness. Judicial scrutiny of counsel's performance must
be highly deferential, and a fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time. A court must
indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." 236 Kan. at 656-57.

Chamberlain also set forth the generally applicable standards for evaluating the
prejudice
prong as follows:

"'With regard to the required showing of prejudice, the proper standard
requires the defendant to show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. A court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge or jury.'"
236 Kan. at 657.

As with all applications of the Strickland test, whether a defendant has made
the
requisite showing depends on the facts of the particular case. See Strickland, 466
U.S. at 695-96. When, as here, the K.S.A. 60-1507 court has made findings of fact and
conclusions of law,
this court on appeal reviews whether the decision reached by the trial court follows as a
matter of law from the facts stated as its basis and also whether the facts so stated have any
substantial support in the evidence. State v. Orr, 262 Kan. 312, 322, 940 P.2d 42
(1997). We
do not reweigh the testimony or the credibility of witnesses. At the same time, our review of
the performance and prejudice components remains de novo as mixed questions of law and
fact. 262 Kan. at 322. We now turn to Cellier's five claims.

Was trial counsel ineffective when counsel failed to

preserve one issue for direct appeal?

The trial court denied Cellier's motion to suppress four statements made to police.
Cellier, 263 Kan. at 63. The Supreme Court refused to address Cellier's appeal of
that ruling
because trial counsel did not properly object at trial to the admission of the statements. 263
Kan. at 65 (citing State v. Milo, 249 Kan. 15, 18, 815 P.2d 519 [1991]) ("When . . . a
motion to
suppress is denied, the moving party must object to the evidence at trial to preserve the issue
on appeal."). Cellier now argues trial counsel was ineffective by failing to preserve the issue
for appellate review.

Following an evidentiary hearing on Cellier's K.S.A. 60-1507 motion, the 1507 court
held that while counsel breached an essential duty in failing to object to the admission of the
evidence, there was no prejudice because "the statements were knowingly and voluntarily
made in compliance with the Miranda requirements"; thus, "there was not a
reasonable
probability that the trial court's suppression of the defendant's confession would have been
overturned [on appeal]."

Cellier argues the 1507 court erred because counsel's deficient performance is
ineffective per se and prejudice is presumed. As noted above, the State does not contest the
1507 court's finding that trial counsel breached an essential duty; thus, the only issue is
whether Cellier suffered prejudice. We begin by addressing what prejudice Cellier must
demonstrate.

Generally, in order to demonstrate prejudice, a defendant must show a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different. Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S.
Ct. 1029
(2000). This showing of prejudice is required in cases where the defendant's claim involves
counsel's performance during the course of a legal proceeding, either at trial or on appeal. In
these cases involving mere "attorney error," the defendant is required to demonstrate the
errors "'actually had an adverse effect on the defense.'" 120 S. Ct. at 1037 (quoting
Strickland,
466 U.S. at 693). Thus, if Cellier's claim is one where reliability is presumed, he then must
show, but for counsel's failure to object, he would have prevailed on appeal. See, e.g.,
Jackson
v. Shanks, 143 F.3d 1312, 1320 (10th Cir. 1998).

The United States Supreme Court has noted, however, two types of cases when the
strong presumption of reliability gives way and prejudice is presumed because "the adversary
process itself [is] presumptively unreliable." United States v. Cronic, 466 U.S. 648,
659, 80 L.
Ed. 2d 657, 104 S. Ct. 2039 (1984). First, prejudice is presumed when there has been a
complete denial of counsel. See Penson v. Ohio, 488 U.S. 75, 88-89, 102 L. Ed. 2d
300, 109 S.
Ct. 346 (1988). Second, prejudice is presumed when there are "various kinds of state
interference with counsel's assistance." Strickland, 466 U.S. at 692. In these two
types of
cases, prejudice is presumed because a "case-by-case inquiry into prejudice is not worth the
cost." 466 U.S. at 692 (citing Cronic, 466 U.S. at 658). Further, these impairments
of the
right to effective assistance of counsel are easily identified and easy for the government to
prevent because the prosecution is directly responsible. Strickland, 466 U.S. at 692.

The United States Supreme Court has further noted two types of cases where a
"similar, though more limited, presumption of prejudice" is warranted. Strickland,
466 U.S.
at 692. The first of these two situations occurs when "counsel is burdened by an actual
conflict of interest." 466 U.S. at 692. In this situation, "[p]rejudice is presumed only if the
defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an
actual conflict of interest adversely affected his lawyer's performance.'" 466 U.S. at 492
(quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 100 S. Ct. 1708
[1980]).

Flores-Ortega illustrates the second situation where a more limited
presumption of
prejudice is warranted. There, the habeas corpus petitioner alleged counsel was ineffective for
failing to file a notice of appeal. In discussing prejudice, the Court stated counsel's deficient
performance deprived the defendant "of more than a fair judicial proceeding; that deficiency
deprived [the defendant] of the appellate proceedings altogether." 120 S. Ct. at 1038. The
Court stated this case was unusual because "counsel's alleged deficient performance arguably
led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a
proceeding itself," the appeal process. 120 S. Ct. at 1038. In these circumstances, the
Flores-Ortega Court held there cannot be "any 'presumption of reliability' . . . to
judicial
proceedings that never took place." 120 S. Ct. at 1038 (quoting Smith v. Robbins,
528 U.S.
259, 145 L. Ed. 2d 756, 120 S. Ct. 746, 764-65 [2000]).

While holding in these circumstances a defendant need not make a further showing of
prejudice with respect to the reasonable probability of success on appeal on the underlying
merits of his claim, a defendant must still show "a reasonable probability that, but for
counsel's deficient failure to consult with him about an appeal, he would have timely
appealed." Flores-Ortega, 120 S. Ct. at 1038. This is because "counsel's deficient
performance
must actually cause the forfeiture of the defendant's appeal. If the defendant cannot
demonstrate that, but for counsel's deficient performance, he would have appealed," he has
not been deprived of anything and is not entitled to relief. 120 S. Ct. at 1038 (citing
Peguero
v. United States, 526 U.S. 23, 143 L. Ed. 2d 18, 119 S. Ct. 961 [1999]). Otherwise stated,
"when counsel's constitutionally deficient performance deprives a defendant of an appeal that
he otherwise would have taken, the defendant has made out a successful ineffective assistance
of counsel claim entitling him to an appeal." Flores-Ortega, 120 S. Ct. at 1039.

Cellier contends he need only show he would have appealed the denial of his motion
to suppress because like the Flores-Ortega situation, his trial counsel's deficient
performance
effectively denied him an appellate proceeding on the merits of his appeal. If Cellier's analogy
to Flores-Ortega is correct, then he has succeeded on his claim of ineffective
assistance of
counsel because he did attempt to appeal the merits of the denial of his motion to suppress.
See Cellier, 263 Kan. at 62-66.

The Seventh Circuit was presented with a similar question in Kitchen v. United
States,
227 F.3d 1014 (7th Cir. 2000). In Kitchen, the defendant filed a post-trial, pre-appeal
motion
for new trial based on newly discovered evidence. The motion was denied. On direct appeal,
the conviction was affirmed in part and reversed in part. United States v. Kitchen, 57
F.3d 516
(7th Cir. 1995). On remand, the defendant filed a motion to vacate his sentence, alleging
counsel was ineffective in failing to appeal the denial of his motion for a new trial.

After holding counsel was deficient, the Seventh Circuit declined to extend
Flores-Ortega. The Seventh Circuit noted prejudice is presumed when there is a
complete denial of
counsel, meaning "the defendant never receive[d] the benefit of a lawyer's services in
constructing potential appellate arguments." Kitchen, 227 F.3d at 1021 (quoting
Castellanos v.
United States, 26 F.3d 717, 718 [7th Cir. 1994]). The critical factor identified by the
Seventh
Circuit is the difficulty "for a court to evaluate the likelihood of success on appeal when the
potential issues on that appeal were never identified." Kitchen, 227 F.3d at 1021.
Because
counsel's deficient performance did not force the court "to employ [its] imagination[] to
determine what appealable issues were present," this did not present "a situation as one in
which [defendant] was 'abandoned' by his attorney or the denial of counsel on appeal was
'complete.'" 227 F.3d at 1021. Rather, counsel's deficient performance

"foreclosed our review of one issue--whether Kitchen was entitled to a new
trial on the basis of newly discovered evidence. This is unlike the situation
in which the possible issues on appeal have not even been identified by an
advocate, and prejudice must be presumed. [Citation omitted.] Here, the
abandoned issue has been clearly defined, and no reason has been offered why
any prejudice resulting from its abandonment may not be reliably
determined."

Kitchen, 227 F.3d at 1021. The Seventh Circuit then analyzed the claim to
determine whether
an appeal based on the denial of that motion could have resulted in reversal.

Here, the crucial question is whether Cellier's claim warrants the "limited"
presumption of prejudice as described in Flores-Ortega or the generally applicable
presumption of reliability. The answer to this question, in turn, hinges on whether a
presumption of reliability may be accorded to appellate proceedings that took place on some,
but not all, of the issues Cellier wished to advance. See Flores-Ortega, 120 S. Ct. at
1038-39
(requiring a showing of "actual" prejudice when the proceeding in question is presumptively
reliable, but presuming prejudice when violation of the right to counsel rendered the
proceeding "entirely nonexistent"). For the reasons that follow, we find the Seventh Circuit's
reasoning persuasive.

Appealing an issue not preserved and failing to file a notice of appeal results in similar
outcomes. In both situations, one issue or all issues are procedurally barred from a decision
on the merits. However, it is not the similarity in outcomes that must be examined. The
Flores-Ortega Court was not concerned with the outcome, but rather, it was
concerned with
the unfairness of requiring "an indigent, perhaps pro se, defendant to demonstrate that his
hypothetical appeal might have had merit before any advocate has ever reviewed the record . .
. in search of potentially meritorious grounds for appeal." Flores-Ortega, 528 U.S. at
1040. As
the Seventh Circuit recognized, this is not a situation where the defendant was "'abandoned'
by his attorney or the denial of counsel on appeal was 'complete.'" Kitchen, 227 F.3d
at 1021.
As noted in Strickland, prejudice is only to be presumed where "[p]rejudice . . . is so
likely
that case-by-case inquiry into prejudice is not worth the cost." Strickland, 466 U.S.
at 692.
Here, Cellier has offered no reason why prejudice is likely to occur or why we may not
reliably determine if he has incurred any prejudice. We thus turn to the question of whether,
but for counsel's unprofessional error, there is a reasonable probability the conviction would
have been reversed on appeal.

On appeal of the denial of his K.S.A. 60-1507 motion, Cellier only argues the Supreme
Court would have overturned the trial court's ruling that he voluntarily, knowingly, and
intelligently waived his Miranda rights. Thus, only Cellier's second, third, and fourth
statements as described in the Supreme Court's opinion need be considered, as the first
statement was not preceded by a Miranda warning. See Cellier, 263 Kan.
at 62-63.

Both the Fifth and Fourteenth Amendments to the United States Constitution require
that a confession be voluntary before it can be admitted into evidence. Dickerson v. United
States, 530 U.S. 428, 147 L. Ed. 2d 405, 120 S. Ct. 2326 (2000). After the warnings as
described
in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), have
been given,
an individual may knowingly and intelligently waive his constitutional rights and agree to
answer questions or make a statement. State v. Lewis, 258 Kan. 24, 31, 899 P.2d
1027 (1995).
The burden is on the State to prove a knowing and voluntary waiver of Miranda
rights. State
v. Hedges, 269 Kan. 895, 8 P.3d 1259 (2000).

Essential to this inquiry is the determination the statement was the product of the free
and independent will of the accused. State v. Esquivel-Hernandez, 266 Kan. 821,
825, 975 P.2d
254 (1999). In this vein, coercive police or State activity is an essential and necessary predicate
to finding a confession is not "voluntary" within the meaning of the Fourteenth Amendment.
State v. Snodgrass, 252 Kan. 253, 259, 843 P.2d 720 (1992) (citing Colorado
v. Connelly, 479
U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515 [1986]). As the United States Supreme Court
explained, "[o]nly if we were to establish a brand new constitutional right--the right of a
criminal defendant to confess to his crime only when totally rational and properly
motivated--could respondent's present claim be sustained." 479 U.S. at 166. The Kansas
Supreme Court
has recognized only one exception to this rule--a statement may be involuntary and, thus,
inadmissible if the defendant is found to be insane under the M'Naughten test, even
absent
State coercion. Snodgrass, 252 Kan. at 261 (citing State v. Boan, 235
Kan. 800, 804, 686 P.2d
160 [1984]).

If this were on direct review, the Kansas Supreme Court would have accepted the trial
court's determination that Cellier's statements were freely and voluntarily given if that
determination was supported by substantial competent evidence. See
Esquivel-Hernandez, 266
Kan. at 826. The Supreme Court would not have reweighed the evidence. See
Hedges, 269
Kan. at ___. Finally, we note the "harmless error" doctrine has no application to this
question. Use of an involuntary statement against a criminal defendant is a denial of due
process of law, even though there is ample evidence aside from the confession to support the
conviction. Esquivel-Hernandez, 266 Kan. at 825.

The 1507 court, after listening to the tapes of the interviews and applying the Supreme
Court's scope of review noted above, found there was no reasonable probability the trial
court's suppression of the defendant's confession would have been overturned, because the
tapes "are compelling evidence that Cellier had the mental capacity to appreciate and
understand the Miranda warnings and, therefore, the statements were knowingly and
voluntarily made in compliance with the Miranda requirements." There was no
finding of
police or State coercion.

The tapes relied on by the 1507 court in finding a knowing and voluntary waiver were
not included in the record on appeal. Cellier has the burden of furnishing a record
affirmatively showing the prejudicial error of the 1507 court. See
Esquivel-Hernandez, 266
Kan. at 827. Absent the tape or even a transcript of the confession on appeal, we presume the
1507 court's factual finding was correct that Cellier had the mental capacity to appreciate and
understand the Miranda warnings. Absent the tapes, we are in no position to
determine
whether there were coercive police practices in obtaining the confession and, thus, affirm the
1507 court's holding.

Was counsel ineffective in failing to call certain

witnesses at the motion to suppress?

Cellier next contends trial counsel was ineffective by failing to call any witnesses at
the suppression hearing to testify about his mental state when he waived his Miranda
rights.
At the 1507 hearing, Dr. Wurster, a psychiatrist, opined on the day of the murder that Cellier
was incapable of "making rational statements, rational decisions, rational judgments." Dr.
Wurster concluded that because of Cellier's irrational, psychotic, and delusional behavior,
Cellier was unable to knowingly and intelligently waive his Miranda rights. Dr.
Wurster also
testified he had reported this conclusion to defense counsel prior to the hearing on the
motion to suppress but was not called to testify. Cellier's defense counsel testified at the 1507
hearing he could not recall why he did not call Dr. Wurster to testify at the suppression
hearing.

The 1507 court found defense counsel was not constitutionally ineffective and Cellier
did not suffer any prejudice. Without addressing the performance prong, we find for the
reasons discussed below, Cellier suffered no prejudice. To prove prejudice, Cellier must
show, but for counsel's unprofessional conduct, there is a reasonable probability the result of
the proceeding would have been different. Strickland, 466 U.S. at 694. In the
context of the
challenge brought here, Cellier must show not only that the evidence would have been
suppressed, but also that the result of the trial would have been different. See Kimmelman
v.
Morrison, 477 U.S. 365, 379-80, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986).

The witnesses Cellier now complains counsel failed to call at the suppression hearing
would only have testified as to Cellier's ability to knowingly and intelligently waive his
Miranda rights. We have held that Cellier has failed to prove any police coercion in
obtaining
the statements now challenged. Therefore, we must determine whether there was a
reasonable probability that the testimony of these witnesses would have established Cellier
was legally insane pursuant to the M'Naughten test. See Snodgrass, 252
Kan. at 261 (holding
one must prove police coercion before a statement is involuntary, unless one is legally
insane).

At the 1507 hearing, Cellier presented no new testimony on the issue of legal insanity
(other than that cumulative evidence noted below in Issue 4). For the reasons stated in the
Supreme Court's decision holding there was sufficient evidence of Cellier's legal sanity, we
find there is no reasonable probability that had Cellier presented expert testimony on the
issue of insanity at the motion to suppress, the motion would have been granted. See
Cellier,
263 Kan. at 72-73. Given these facts, we find no reasonable probability the trial court would
have granted the suppression motion even if the defense had presented testimony on the issue
of Cellier's legal sanity.

Further, even if the three statements had been suppressed as a result of these witnesses'
testimony, there is no reasonable probability the outcome of the criminal trial would have
been different because there was overwhelming evidence outside those three statements that
Cellier committed the crimes charged. As noted above, Cellier only challenges his ability to
waive his Miranda rights. Therefore, only the second, third, and fourth statements
Cellier
made to police, i.e., those statements made after Cellier was read his
Miranda rights, are at
issue.

As noted in the Kansas Supreme Court's opinion on Cellier's direct appeal, Cellier,
covered with blood, voluntarily entered the Lyon County Sheriff's office and told Officer
Eric Brunner he had shot the victim, Scott Payton, in self-defense. Cellier, 263 Kan.
at 57.
Cellier then voluntarily directed the Lyon County Sheriff to the scene of the crime, and,
upon arrival and confirmation that the victim was dead, stated: "I shot him, I shot him."
Cellier, 263 Kan. at 58. It was only at this time that Cellier was first advised of his
Miranda
rights, and Cellier made the statements whose admission he now challenges. See
Cellier, 263
Kan. at 58.

The only significant pieces of information that came of the three Mirandized
interviews that would not have been before the jury had those statements been suppressed is
Cellier's recantation of his claim of self-defense and his statements to police that he knew
shooting the victim was wrong. 263 Kan. at 58-62. There was, however, overwhelming
evidence outside these three statements that the act was not one of self-defense and that he
was not legally insane at the time of the shooting.

First, the testimony of Nishantha Pitigala and Donald Miles as described in the
Supreme Court's decision of Cellier's direct appeal is overwhelming evidence outside the
three challenged statements that this was not an act of self-defense.

We also find there is no reasonable probability the admission of the three statements
had any impact on the jury's finding of legal sanity. In this regard, the only statement that
would not have been before the jury was Cellier's statement he knew what he did was wrong.
On direct appeal, Cellier contended the evidence was insufficient for the jury to find beyond
a reasonable doubt that he was sane at the time of the murder or that he was guilty of
premeditated murder and aggravated kidnapping. In rejecting this argument, the Kansas
Supreme Court did not discuss his statements during the third interview that he knew what
he had done was wrong. In fact, the Kansas Supreme Court relied little on any evidence
coming from those three interviews that otherwise would not have been before the jury via
the subsequent psychiatric evaluations in finding "Cellier knew the nature and quality of his
act and knew right from wrong with respect to that act." 263 Kan. at 72. We also note the
State's expert, who opined Cellier was legally sane at the time of the shooting, relied
primarily on his own examination of Cellier. The expert never stated he relied on Cellier's
statement obtained during those interviews that he knew what he was doing was wrong when
he did it. We find, beyond a reasonable doubt, that the statements in question did not have
any impact on the expert's opinion or on the jury's verdict.

We, therefore, believe there is no reasonable probability the outcome of the trial
would have been any different had counsel called the witnesses and the trial court suppressed
the statements. Cellier, therefore, suffered no prejudice from counsel's failure to call these
witnesses at the suppression hearing. This claim of ineffective assistance of counsel must fail.

Was counsel ineffective in failing to pursue a diminished mental

capacity defense?

Cellier next contends counsel was ineffective in failing to pursue the defense of
diminished mental capacity. The 1507 court ruled: "Although it certainly would have been
better practice for trial counsel to request the diminished capacity instruction," Cellier did
not suffer prejudice and, therefore, the court denied this ground of Cellier's 1507 motion.

The concept of diminished capacity requires the presence of a mental disease or defect
not amounting to legal insanity that the jury may consider in determining whether the
defendant had the required specific intent for the crime charged. State v. Wilburn,
249 Kan.
678, 686, 822 P.2d 609 (1991); see PIK Crim. 3d 54.12-B. Cellier's defense counsel testified at
the 1507 hearing that while Cellier knew and understood the diminished capacity defense and
believed it applied, he could not remember why it was not pursued. The State's brief
apparently concedes the 1507 court's finding that it would have been better practice to
request the diminished capacity instruction. We, therefore, will presume counsel was
deficient in failing to pursue this defense.

Cellier must still show, but for counsel's failure to pursue the defense of diminished
mental capacity and a jury instruction on the defense, there is a reasonable probability the
result of the trial would have been different. Cellier presented no evidence either at the
criminal trial or the 1507 hearing that he did not have the ability to form the specific intent
required by the aggravated kidnapping statute, that specific intent being "to inflict bodily
injury or to terrorize the victim." K.S.A. 21-3420, K.S.A. 21-3421. It clearly appears from the
facts of this case that in fact it was the intent of Cellier "to inflict bodily injury or to terrorize
the victim" in taking and confining the victim by force, threat, or deception. Since he did in
fact form that specific intent, it necessarily follows he had the ability to form
specific intent.
There is no likelihood the jury would have found he was able to form one specific intent (to
inflict bodily injury) while at the same time unable to form a different specific intent (to kill).
It may well be that Cellier did not in fact specifically intend to kill the victim with the first
shot, but there is strong evidence he did form that specific intent on the second and third
shots. Nonetheless, the question is not whether he did in fact form the specific intent,
but
rather, whether he had the ability to form the specific intent. The finding he did form
one
specific intent is almost irrefutable evidence he had the ability to form another specific intent.
Cellier suffered no prejudice.

Was counsel ineffective in failing to call certain witnesses at trial?

Cellier next claims trial counsel was ineffective in failing to present several witnesses
who could have testified as to Cellier's mental state at the time of the shooting. Cellier
identifies 11 such witnesses. They include mental health professionals, family, friends, and
acquaintances. The 1507 court held counsel's conduct was not deficient because these
witnesses could only have provided evidence that was cumulative in nature to evidence
already before the jury. It is thus necessary to examine what evidence was put on at trial with
respect to Cellier's mental illness and then compare it to the testimony Cellier now faults
counsel for failing to present.

At trial, Cellier's history of mental illness was chronicled by the professional opinions
of Doctors Wurster, Polom, and Lacoursiere. This testimony was supplemented by the lay
testimony of two of Cellier's friends, Nishantha Pitigala and Donna Miles, the two officers
who initially interviewed Cellier and called the county attorney for advice due to concerns of
delusional problems, attorney Ty Wheeler, who represented Cellier during the care and
treatment case, Chris Criner, who was an intern at the Mental Health Center of East Central
Kansas and was assigned to work with Cellier during the care and treatment case, and the care
and treatment case file. The Supreme Court's decision noted that "[t]he sole focus of the trial
was Cellier's mental state." Cellier, 263 Kan. at 62.

Comparatively, at the 1507 hearing, Cellier presented the professional testimony of
Dr. Bao Duong, who diagnosed Cellier as a paranoid schizophrenic 3 months before the
shooting. Through the testimony of his criminal trial counsel, Cellier also established that
three other mental health professionals had diagnosed him as paranoid schizophrenic, two of
them making this diagnosis after the shooting. Cellier also presented the testimony of seven
lay witnesses, mostly family members, who testified about Cellier's bizarre behavior
throughout his childhood and in the months before and after the shooting. Defense counsel
did not interview Dr. Duong and four of the lay witnesses prior to trial.

Cellier contends the failure to investigate, interview, and call witnesses whose
testimony could be favorable to the defense position is "patently ineffective advocacy" such
that the prejudice prong of the Strickland analysis need not be demonstrated. To
support this
proposition, Cellier cites King v. State, 810 P.2d 119 (Wyo. 1991). In
King, the Wyoming
Supreme Court held prejudice is presumed when counsel unjustifiably fails to interview and
secure witnesses for trial who could have rebutted testimony of the prosecution's witnesses.
810 P.2d at 122-23. This court recently required a defendant to prove prejudice when counsel
unreasonably failed to contact and interview alibi witnesses. See State v. Sanford, 24
Kan.
App. 2d 518, 523-26, 948 P.2d 1135, rev. denied 262 Kan. 968 (1997). Cellier's
allegations of
ineffectiveness do not rise to a complete denial of counsel, where prejudice is to be presumed.
See Penson v. Ohio, 488 U.S. 75, 102 L. Ed. 2d 300, 109 S. Ct. 346 (1988). Thus,
in order to
prove prejudice, Cellier must demonstrate, but for counsel's failure to investigate and call
these witnesses, there is a reasonable probability the outcome of the trial would have been
different.

We agree with the 1507 court that Cellier failed to demonstrate this prejudice.
Cellier's delusional behavior and beliefs were well presented to the jury, both by the defense
and State's cases. The testimony of the lay witnesses at the 1507 hearing was not significantly
different or more expansive than that offered at the criminal trial. The record also reveals the
State presented evidence of Cellier's paranoid schizophrenia; thus, the expert testimony
offered at the 1507 would also have been cumulative in nature. We can, therefore, say there is
no reasonable probability the outcome could have been different had this testimony been
presented to the jury. This claim fails.

Was counsel ineffective in failing to pursue a motion

to recuse the trial judge?

Cellier's last claim of ineffective assistance of counsel is based on counsel's failure to
file a motion with the administrative/chief judge pursuant to K.S.A. 20-311d(b) when the
criminal trial judge denied Cellier's motion to recuse. The criminal trial judge in this case
presided over Cellier's mental health commitment and ordered Cellier released from the state
hospital 2 months prior to the shooting. Cellier offers three reasons why the recusal should
have been pursued. First, the judge might have had an interest in guarding from criticism his
decision to release Cellier 2 months prior to the shooting; second, the effect on the jury of
the judge's previous ruling that Cellier was sane enough to be released; and third, the judge
was part of the system that had failed Cellier, which was the theme of the defense. Thus, the
jury may have felt a finding of insanity would be like "indicting the very judge sitting on the
case."

We agree with the 1507 court's finding that the abandonment of the motion to recuse
was a reasonable strategic decision and, thus, his claim must fail. See Flores-Ortega,
120 S. Ct.
at 1036 ("we have held that the Federal Constitution imposes one general requirement: that
counsel make objectively reasonable choices.").

Trial counsel testified at the 1507 hearing that after discussing the matter with Cellier,
the defense chose not to pursue the motion to recuse the trial judge in order to pursue a
strategy that the judge was on their side. That strategy was to argue to the jury that the judge
only approved of Cellier's release from Topeka State Hospital upon the condition Cellier
took his medication. Cellier did not take his medication and, thus, this judge must believe
Cellier was insane when the shooting occurred.

This strategy was consistent with the defense of legal insanity. We conclude this
strategy falls within the wide range of reasonable conduct. Counsel was not ineffective.

Finally, we are compelled to comment on the State's scant brief. After receiving three
extensions of time within which to file its brief, the former county attorney filed his brief 2
days late; the argument section of the brief contains a mere eight paragraphs. Further, the
argument section consists mainly of case citations describing our standards of review.

This apparent lack of interest in the proceedings was also recognized by the 1507 trial
judge, who stated review of the case was "made even more difficult by the failure of the State
to present evidence and arguments to support it's [sic] claim that Cellier had the
effective
assistance of counsel."